Filed 4/27/23 Romero v. Los Angeles Rams CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ENRIQUE ROMERO et al.,

Plaintiffs and Appellants,

v.

LOS ANGELES RAMS et al.,

Defendants and Respondents.

B310152

(Los Angeles County

Super. Ct. No. 18STCV00679)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David J. Cowan, Judge. Affirmed.

Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and 

Kirill Lavinski for Plaintiffs and Appellants.

Manning & Kass, Ellrod, Ramirez, Trester, Robert P. Wargo, 

Jeffrey M. Lenkov and Steven J. Renick for Defendant and 

Respondent Los Angeles Rams.

Murchison & Cumming, Gina E. Och; Skane Mills and 

Heather L. Mills for Defendant and Respondent Contemporary 

Services Corporation.

_________________________
2

Appellant Enrique Romero was injured by fellow fans at 

the Los Angeles Memorial Coliseum (Coliseum) near the end of a 

Los Angeles Rams football game. Enrique, his wife and two 

daughters (appellants) brought this action against Contemporary 

Services Corporation (CSC), the Los Angeles Rams (Rams) and 

the University of Southern California (USC), alleging causes of 

action for negligence, premises liability and related ancillary 

torts. All three defendants obtained summary judgment in their 

favor. This appeal involves two of the defendants: CSC and the 

Rams.1 CSC is an entity hired to provide crowd management

services at the Coliseum during certain events, including Rams 

football games. In granting CSC’s and the Rams’ motions for 

summary judgment, the trial court assumed that both defendants 

had a duty to protect Enrique and his family and had failed to 

take the ameliorative steps proposed by appellants. 

Nevertheless, the court granted summary judgment on the 

ground that these failures, as a matter of law, were not the cause 

of the assault.

Appellants appeal, contending the trial court erred in 

finding they had failed to create triable issues of fact concerning 

causation. We affirm the judgment.

1 The record in this case reveals that USC filed its motion at 

the same time as CSC and the Rams, but that motion was denied 

without prejudice on the ground of defective service. We take 

judicial notice of the record in case No. B313461, also before this 

court on appeal; that record shows that USC subsequently refiled 

its motion, which was granted by a different trial court on a 

different ground.
3

BACKGROUND

For the 2017–2018 season, the Rams played their home 

games at the Coliseum, pursuant to an agreement with USC. For 

purposes of the motion for summary judgment, the Rams 

conceded they had a duty to protect the fans in the Coliseum.

Some of the security at the Rams games was provided by 

off-duty Los Angeles Police Department (LAPD) officers and Apex 

Security Group, Inc. (APEX) security personnel. Some LAPD 

officers were hired directly by USC, and others by the Rams. 

APEX is a subsidiary of CSC, but the record does not show what 

control, if any, CSC had over the deployment of APEX personnel.

CSC’s contract with USC called for CSC to provide crowd 

management services at the Coliseum, and the Rams were 

required to use CSC for this purpose. CSC divided its staff into 

two categories: event staff and security staff. Event staff are not 

authorized to perform any security functions. Security staff are

required to have a security guard card. They perform some 

security functions such as gate searches. CSC told both its event 

staff and its security staff not to intervene in any verbal or 

physical altercations involving fans. Their role was to observe 

and, if necessary, refer those matters to LAPD and APEX.

Kevin Daly, USC’s event manager for Rams’ games, 

explained USC’s expectations of the various security providers. 

He testified USC expected LAPD to become involved when 

someone was breaking the law. In the event of a fight, USC 

instructed CSC “to not get hurt and to be the best witness they 

can be to a situation. But we do not ask them to intervene where 

they might be harmed or suffer injury.” The parties do not 

discuss APEX’S role in any detail on appeal, but it appears APEX
4

personnel were authorized to intervene in some altercations and 

to eject fans from the Coliseum.

LAPD officers, APEX personnel, and CSC event and 

security staff were present inside and outside the Coliseum for 

the January 6, 2018, play-off game which Enrique attended with 

his wife Karina and his two daughters Alannah and Yasmine.

Near the end of the game, Enrique and Yasmine walked 

from their assigned seats to the section of the Coliseum where 

family members of the Rams players were seated (Family 

section).

2 This section was closer to the field, and Yasmine 

wanted to take photographs of the players and greet them. The 

only CSC staff assigned to this seating area were two event staff 

employees, who were essentially ushers.

At about this same time, CSC supervisor James Mayhan 

was informed by a Rams employee that there was “an issue” in 

the Family section near the Romeros. Mayhan went to the 

Family section, where another CSC supervisor was already 

present. Mayhan observed overcrowding in the aisle and asked 

the Romeros and others to return to their seats. The Romeros did 

not move out of the aisle and return to their seats. At this point, 

a verbal altercation developed between Enrique and some of the 

Rams family members.3 Mayhan positioned himself between 

Enrique and the row of family members and explained to Enrique 

2 There is contradictory evidence about exactly when 

Enrique and his daughter went to the Family seating section. 

We discuss this in more detail in section D.4, post.

3 Mayhan did not describe an ongoing verbal altercation 

when he arrived, but his testimony did not rule out that a verbal 

altercation started before he arrived.
5

that he, Mayhan, needed to escort the family members out of the 

section.

Enrique and his daughter began to walk up the aisle. 

Mayhan moved to allow the family members out of their row, and 

they began to walk up the aisle as well, with Mayhan behind one 

or more of the family members.4 The verbal altercation 

continued as Enrique and the Rams family members walked up 

the aisle.

At some point, Enrique walked into a row of seats and 

stood about four to five seats into the row. As the Rams family 

members walked by Enrique, he waved good-bye to a specific 

female family member with whom he had been having the verbal 

altercation. Mayhan heard someone say the word “bitch.” The 

female family member turned and ran into the row where 

Enrique was standing and slapped him. Mayhan began 

scrambling to get between the woman and Enrique and was able 

to get over a seat and position himself between the two. Mayhan 

was immediately hit in the back of the head and knocked to the 

ground for about five to seven seconds. When Mayhan stood up, 

he saw that Enrique had a gash over his eye.

Although there had been crowding in the Family section at 

the end of previous games, this was the first known fight in that 

area.

Enrique’s gash required stitches and he was advised to 

have a titanium plate implanted in the area next to his eye socket 

to prevent further/future damage to his eye. He testified at his 

deposition that he did have such a plate.

4 According to Enrique, Mayhan was in front of all the family 

members.
6

Appellants initially brought this claim against the Los 

Angeles Memorial Coliseum Commission, the City of Los Angeles, 

the County of Los Angeles, the State of California, and an 

individual named Jada Woolfolk, as well as CSC, the Rams and 

USC. Appellants subsequently dismissed the governmental 

defendants and Woolfolk.

DISCUSSION

“ ‘On review of an order granting or denying summary 

judgment, we examine the facts presented to the trial court and 

determine their effect as a matter of law.’ [Citation.] We review 

the entire record, ‘considering all the evidence set forth in the 

moving and opposition papers except that to which objections 

have been made and sustained.’ [Citation.] Evidence presented 

in opposition to summary judgment is liberally construed, with 

any doubts about the evidence resolved in favor of the party 

opposing the motion.” (Regents of University of California v.

Superior Court (2018) 4 Cal.5th 607, 618 (Regents).) We consider 

evidentiary facts, not conclusions or “ultimate” facts. (See, e.g. 

Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Summary judgment is appropriate only where no triable 

issue of material fact exists and the moving party is entitled to 

judgment as a matter of law. A defendant seeking summary 

judgment must show that the plaintiff cannot establish at least 

one element of the cause of action. (Regents, supra, 4 Cal.5th at 

p. 618.) The elements of a negligence cause of action are 1) the 

existence of a duty, 2) a breach of that duty, 3) injury to the 

plaintiff caused by the defendant’s breach, and 4) actual 

damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)
7

A. Trial court proceedings

The trial court granted CSC’s and the Rams’ motions on the 

ground that appellants could not show causation. Causation is 

ordinarily a question of fact which cannot be resolved by

summary judgment. Causation may be decided as a question of 

law if under the undisputed facts, “there is no room for a 

reasonable difference of opinion.” (Nichols v. Keller (1993) 

15 Cal.App.4th 1672, 1687.)

CSC moved for summary judgment on two grounds: it had 

no duty to protect appellants and appellants were unable to prove 

that it was more probable than not that the additional security 

precautions they proposed would have prevented the attack. The 

trial court summarized appellants’ arguments in opposition to 

CSC’s motion for summary judgment as 1) CSC had a duty to 

protect them from the criminal acts of third parties, and 2) CSC

“was negligent in providing inadequate security personnel in 

terms of numbers, training and equipment (specifically 

communications equipment).”

Appellants contended CSC should have taken these 

specific measures: (1) authorize staff members in the seating 

bowl to enforce the Fan Code of Conduct, including ejection of 

fans; (2) provide radios to CSC employees deployed in the lower 

bowl; (3) provide radios capable of direct communication with 

LAPD or APEX to CSC employees deployed in the seating bowl; 

(4) inform CSC employees deployed in the seating bowl about 

LAPD and APEX deployments; (5) timely call LAPD and/or APEX 

to the verbal altercation involving Mr. Romero; and (6) keep Mr. 

Romero and his assailants physically separated until LAPD 

and/or APEX arrived on scene.
8

The trial court recognized that, in contrast to CSC, the 

Rams conceded for purposes of summary judgment that they had 

“some” duty to provide security at the Coliseum during games. 

They contended, however, that in the absence of prior incidents 

in the Family section, they had no duty to provide additional 

security personnel in that section.

Appellants contended that overcrowding in the Family

section made an altercation there foreseeable. Appellants also 

contended the Rams should have: (1) provided enough LAPD 

officers in the seating bowl to “maintain order, deter violent 

fights among the massive crowd of attendees, ensure the safety of 

attendees and discourage overconsumption of alcohol”; 

(2) implemented “adequate security measures”; (3) ensured that 

security personnel in the seating bowl were aware of LAPD and 

APEX deployments; (4) ensured that CSC staff members could 

directly communicate with LAPD and/or APEX; and (5) provided 

additional security personnel to the Family section in light of 

prior complaints.

The trial court separately analyzed each defendant’s 

motion for summary judgment, but for both motions stated it 

would assume for the sake of the motion that the defendant 

should have taken the measures identified by appellants, and 

had failed to do so. The trial court then granted both motions, 

finding appellants did not show that CSC’s and the Rams’ failure 

to take ameliorative steps was a substantial factor in causing the 

assault.

B. Duty

On appeal, appellants argue CSC and the Rams had a duty 

to take reasonable steps to protect them against the foreseeable 

criminal acts of third parties. Like the trial court, we will 
9

assume both CSC and the Rams had such a duty. The scope of 

that duty to protect is a question of law for the court. (Castaneda

v. Olsher (2007) 41 Cal.4th 1205, 1214 (Olsher).)

The duty analysis developed by the California Supreme 

Court “requires the court in each case (whether trial or appellate) 

to identify the specific action or actions the plaintiff claims the 

defendant had a duty to undertake. . . . ‘This frames the issue for 

the court’s determination by defining the scope of the duty under 

consideration.’ ” (Olsher, supra, 41 Cal.4th at p. 1214.) Only 

after the scope of the duty under consideration is defined may a 

court meaningfully undertake the balancing analysis of the risks 

and burdens present in a given case to determine whether the 

specific obligations should or should not be imposed on the 

landlord. (Ibid.)

Here the trial court largely accepted the ameliorative steps 

proposed by appellants, with two exceptions. The trial court 

found no evidence that CSC could control the deployment of 

APEX or LAPD personnel and no evidence that the Rams could

control or increase the number of LAPD personnel. Thus, the 

court declined to impose the duty identified in the ameliorative 

steps related to the number and deployment of LAPD and APEX 

personnel. The accepted steps then defined the scope of CSC’s 

and the Rams’ duty.

On appeal, appellants do not contend the trial court erred 

in modifying the scope of CSC’s and the Rams’ duty to exclude 

ameliorative measures related to LAPD and APEX. In discussing 

ameliorative measures on appeal, however, appellants omit the 

list of measures they identified in opposition to the Rams’ motion. 

They attempt to aggregate CSC and the Rams, contending they 

identified six ameliorative measures “respondents” should have 
10

taken to prevent Enrique’s injuries. These measures were 

“(1) providing staff members in the seating bowl that were 

authorized to enforce the Fan Code of Conduct, including the 

ejection of fans; (2) providing CSC employees deployed in the 

lower bowl with radios; (3) providing CSC employees deployed in 

the seating bowl with radios capable of direct communication 

with LAPD or [APEX]; (4) providing CSC employees in the 

seating bowl with information about LAPD and/or [APEX]

deployments; (5) timely escalating the verbal altercation 

involving Mr. Romero to LAPD and/or [APEX]; and (6) keeping 

Mr. Romero and the Assailants physically separated until LAPD 

and/or [APEX] arrived on-scene.” As the record citation reveals, 

these are the steps appellants identified in opposition to CSC’s 

motion for summary judgment.

In the trial court, as discussed above, appellants identified 

a somewhat different set of measures which they claimed the 

Rams should have taken.

5 Appellants do not repeat their 

contention that the Rams should have taken these previously 

identified measures, but do argue that the Rams “owed the 

Romeros a nondelegable duty to maintain the premises in a 

reasonably safe condition. [Citation.] The Rams cannot, 

therefore, escape liability for the negligent handling of the 

incident by CSC staff, who failed to take a number of reasonable 

5 There is some overlap with the CSC measures. Appellants 

contended the Rams should have “ensured” that security 

personnel in the seating bowl were aware of LAPD and APEX

deployments; and that CSC staff members could directly 

communicate with LAPD and/or APEX. They also contended, 

vaguely, that the Rams should have provided “additional security 

personnel to the Family [s]ection in light of prior complaints."
11

ameliorative measures discussed below.” We will assume solely 

for purposes of this appeal that the Rams would be liable for 

CSC’s negligence. We will treat appellants’ omission on appeal of 

the ameliorative measures they identified for the Rams in the 

trial court as a concession that there were no ameliorative 

measures which the Rams should have taken to prevent 

Enrique’s injuries.

We note that well after specifying and discussing the 

ameliorative measures which they claim CSC should have taken, 

and under a heading indicating its subject was breach of duty,

appellants contend “triable issues of fact exist as to whether, 

among other things, Respondents failed to properly coordinate 

security responsibilities between the Rams, USC, CSC, [APEX], 

and LAPD; whether they failed to properly train and authorize 

CSC employees to handle fan altercations; and whether CSC’s 

employees were negligent in failing to keep the Assailants 

physically separated from the Romeros.” This Columbo-like 

briefing of adding “just one more thing” is not a helpful way for 

appellants to structure their arguments; nor is indirectly 

identifying additional ameliorative steps by negative implication 

in a list of breaches rather than in the list of duties. Further, 

appellants may not propose new ameliorative steps for the first 

time on appeal.

Turning to the substance of these failures, only physical 

separation is clearly included in appellant’s list of ameliorative 

measures. In the trial court, appellants used the phrase

“coordinate security” to refer to steps 2 through 5 collectively, and 

we will treat it as having the same meaning on appeal. We will 

similarly treat the failure to train claim as equivalent to the 
12

ameliorative measure previously identified in the trial court as 

providing personnel trained to enforce the Code of Conduct.

C. Breach

The trial court assumed for purposes of the summary 

judgment motion that CSC had a duty to take the suggested 

ameliorative measures, and that CSC had failed to do so. We will 

do the same.

D. Causation

Having assumed duty and breach, the trial court decided 

the summary judgment motion on the basis of no causation. The 

trial court found that none of the breaches were a substantial 

factor in causing Enrique’s injuries, specifically that it was not 

more probable than not that the ameliorative measures proposed 

by appellants would have prevented the attack.

Appellants contend that the trial court applied the wrong 

standard for causation. They acknowledge they were required to 

show that CSC’s acts or omissions were a “substantial factor” in 

causing Enrique’s injury. They contend the substantial factor 

standard “is a relatively broad one, requiring only that the 

contribution of the individual cause be more than negligible or 

theoretical.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 

953, 978 (Rutherford).) According to appellants, “a very minor 

force that does cause harm is a substantial factor.” (Bockrath v. 

31 Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)

While these quotes are accurate, they are taken out of 

context. Both cases are discussing comparative negligence in 

product liability cases where multiple defendants have 

manufactured the defective product. In this context, the 

contribution of an individual defendant’s product to the plaintiff’s 
13

injury need only be “more than negligible or theoretical” for the 

defendant to be liable. (Rutherford, supra, 16 Cal.4th at p. 978.) 

This standard applies once there is proof that the product caused 

the plaintiff’s injury and looks at an individual defendant’s share 

of liability. To show that the product caused the injury, “the 

standard of proof” ordinarily required is “ ‘a reasonable medical 

probability based upon competent expert testimony that the 

defendant's conduct contributed to [the] plaintiff's injury.’ ” 

(Id. at p. 976, fn. 11.)

As the California Supreme Court has put in a non-medical 

context: “ ‘On the issue of the fact of causation, as on other issues 

essential to the cause of action for negligence, the plaintiff, in 

general, has the burden of proof. The plaintiff must introduce 

evidence which affords a reasonable basis for the conclusion that 

it is more likely than not that the conduct of the defendant was a 

cause in fact of the result. A mere possibility of such causation is 

not enough; and when the matter remains one of pure 

speculation or conjecture, or the probabilities are at best evenly 

balanced, it becomes the duty of the court to direct a verdict for 

the defendant.’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 

1205–1206.) More specifically, in a case like the one before us, 

the plaintiff is required “to prove it was ‘more probable than not’

that additional security precautions would have prevented the 

attack.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 

763, 776 (Saelzler).)

1. Train CSC staff to enforce Fan Code of Conduct

Appellants contend that CSC should have provided staff in 

the seating area who were trained to enforce the Fan Code of 
14

Conduct including ejecting fans.6 This is in effect a claim that 

CSC should have provided additional security personnel. As the 

trial court correctly noted, the bare claim that more security 

personnel could have prevented a criminal attack shows only 

“abstract negligence.” (Saelzler, supra, 25 Cal.4th at p. 773.) 

There must be direct or circumstantial evidence showing that the 

assailant took advantage of the defendant’s lapse or omission “in 

the course of committing his attack, and that the omission was a 

substantial factor in causing the injury.” (Id. at p. 779.) When 

the claimed lapse or omission is insufficient security personnel, 

this can be a difficult burden to meet because “ ‘[n]o one can 

reasonably contend that even a significant increase in police 

personnel will prevent all crime or any particular crime.’ ” (Id. at 

p. 777 quoting Noble v. Los Angeles Dodgers, Inc. (1985) 

168 Cal.App.3d 912, 918.) “[A]ssaults and other crimes can occur 

despite the maintenance of the highest level of security.” 

(Saelzler, at p. 777.)

On appeal, appellants contend that if security personnel 

who were authorized to eject fans pursuant to the Code of 

Conduct had been present in the seating area, they could have 

ejected the family members, and perhaps Enrique himself, while 

the altercation was still verbal, and before it escalated to physical 

6 We note appellants claim this would not necessarily require 

more security personnel, just better training of the existing CSC 

staff assigned to the seating area and so the burden would be 

minimal. The burden of a measure is relevant to the scope of 

duty, not causation. (See Castaneda v. Olsher (2007) 41 Cal.4th 

1205, 1214.) We note, however, that appellants have not 

provided evidence showing that the burden of such training 

would be minimal. We strongly question whether it would be.
15

assault. Put differently, appellants are contending that the 

family members took advantage of CSC’s failure to eject them, 

and that this failure was a substantial factor in Enrique’s injury. 

This does not appear to be an argument which was developed in 

the trial court. The record shows, however, that Mayhan began 

the process of removing Enrique and the family members from 

the family seating area while the altercation was still verbal.

Mayhan directed Enrique to clear the aisle in the family 

seating area, and it is undisputed that Enrique began walking up 

the aisle. Mayhan then began to walk up the aisle with the 

female family member and her companions. Although neither of 

these actions were a formal “ejection,” they would have 

accomplished the same result as an ejection: the departure of the 

female family member from the Coliseum and Enrique from the 

seating area before the verbal altercation had become physical.

7

Thus, CSC was doing what appellants contend it should have 

done to prevent an assault, but the assault still occurred. It is 

hard to imagine a clearer example of no causation. There is no 

room for a reasonable difference of opinion here.

7 The family members’ departure had many of the hallmarks 

of a formal ejection. Mayhan stated he tried to “guide” and 

“direct” the female family member. Enrique described the female 

family member’s departure as being “escorted out by security.” 

and agreed with the characterization that she “broke apart from 

the security guard” and ran into the row to slap him. Appellants 

have not shown that a formal ejection of an apparently compliant 

fan should have been conducted differently, apart perhaps from 

their claim that common sense required physical separation,

which we discuss separately.
16

2. Maintain physical separation

On appeal, appellants repeat the ameliorative measure of 

“keeping Mr. Romero and the Assailants physically separated 

until LAPD and/or [APEX] arrived on-scene.” Generally, in the 

trial court, when appellants discussed physical separation, they 

were referring to CSC personnel positioning themselves in 

between the parties. When they discuss this measure on appeal, 

however, they also contend that CSC should not have attempted 

to escort the family members “directly past the Romeros in 

contravention of the commonsense measure to keep parties in a 

verbal altercation physically apart from each other and thus 

preclude escalation into physical violence.”8 They then contend 

there is a triable issue of fact concerning whether Mayhan’s 

decision “to escort the Assailants within arm’s reach of Mr. 

Romero, with who[m] they had been feuding verbally, was a 

substantial factor in causing the assault.”

“Directly past” is a vague term, and “within arm’s reach” an 

even vaguer one, but the record does not show Mayhan escorted 

the family members so close to Enrique that they could reach him 

while they were in the aisle walking past him. Enrique himself 

testified that he moved four or five seats into a row to let the 

family members pass. Both Enrique’s and Mayhan’s description 

of the assault showed that the female member had to turn, leave 

the aisle, enter the row where Enrique was standing and then 

move into the row to reach Enrique. Put differently, she did not 

slap him while she was standing in the aisle. The male family 

members were behind the female and Mayhan and so were even 

8 Thus, appellants essentially abandoned the “until LAPD 

and/or APEX arrived” aspect of this step in the trial court.
17

farther away. Since there is no evidence that Mayhan escorted 

the family members “directly past” or “within arm’s reach” of 

Enrique, there is no triable issue of fact concerning whether such 

an act was a substantial factor in causing Enrique’s injuries.

As for appellants’ trial court argument that CSC should 

have “physically separated” the parties by having a CSC 

employee stand between the parties, the trial court found there 

was no evidence that “keeping Romero and the assailant 

‘physically separated’ would ‘more likely than not’ have prevented 

the (post-slap) attack which caused a gash above Romero's eye.”

The court specifically found that Mayhan was able to physically 

place himself between Romero and the female family member

after the slap. The evidence shows that Mayhan was then also 

between the male family members, as they knocked him down to 

get at Enrique. The court found there was no evidence that 

another CSC employee would have been able to separate the 

parties without being attacked or that Mayhan's attempt to 

separate the parties was deficient. Put differently, the 

undisputed evidence showed that the physical presence of a CSC 

employee did not prevent the attack from occurring. There is no 

room for a reasonable difference of opinion here.

3. Better communications

Appellants contend the trial court erred in finding that 

LAPD and APEX would not have arrived before the assault 

occurred even if CSC had called them as soon as it had notice of 

overcrowding in the family section. The trial court stated “CSC 

only had notice of overcrowding in the [F]amily section with less 

than five minutes remaining in the Rams game” and since the 

average response times of APEX and LAPD were over eight and 
18

nine minutes respectively, they would have arrived after the 

assault.

Appellants contend the trial court wrongly equated five 

minutes remaining in the game with five minutes in real time. 

They contend that football games had timeouts, commercial 

breaks and two minute warnings at the end of the game that

multiply the actual duration of the last few minutes of each 

game. Appellants do not provide a record citation to support this 

contention. Even if we were to take judicial notice of the common 

fact that the clock may be stopped in a timed game by various 

occurrences, there is nothing in the record on appeal to show that 

such stoppages actually occurred in this game or how long any 

stoppages were. We cannot simply guess at what the “real time” 

was. Put differently, we have no basis to find that time left to 

play did not equate to real time and so no basis to find error on 

the part of the trial court.9

Appellants further contend the better communication 

measures of steps 2 through 5 would have resulted in a faster 

response time by APEX and LAPD, who were better trained to 

prevent assaults. They contend there is triable issue of fact as to 

whether respondents’ failure to take those steps was a 

substantial factor in causing the assault.

9 We note that in his deposition, Enrique estimated that 

about two to four minutes elapsed between his arrival in the 

family section and the assault, which is not consistent with his 

claim on appeal that substantially more than five minutes 

elapsed. To the extent that Enrique attempted to contradict his 

deposition testimony and provide a longer time estimate in his 

declaration in opposition to summary judgment, we disregard 

that declaration. (Whitmire v. Ingersoll-Rand Co. (2010) 184 

Cal.App.4th 1078, 1087.) 
19

There is evidence that CSC staff, even supervisors such as 

Mayhan, could not communicate directly with LAPD or APEX via 

radio. They would contact CSC command, who would in turn 

contact LAPD or APEX. They could contact LAPD or APEX 

directly if those personnel were in the area.

Appellants do not provide any record citation showing how 

response time was measured. Appellants seem to assume that 

response time is measured from when a CSC employee first 

decides to seek assistance from APEX or LAPD to the time APEX 

or LAPD personnel arrives, but we cannot simply assume that is 

what it measures. It is equally, if not more, likely that response 

time is measured from when APEX or LAPD receive the request 

for assistance from CSC command. If the latter were true, 

improved communications by CSC staff would not improve APEX 

or LAPD response time. (Such communications could only reduce 

the unknown time it took for a request to travel from a CSC 

employee to the CSC command center.)

In the absence of the above-described evidentiary fact, 

appellants have not created a triable issue of fact concerning 

whether improving CSC communications would have prevented 

the assault.
20

DISPOSITION

The judgment is affirmed. Appellants to bear costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.